Volume 4 — Ohio Circuit Court Reports, New Series

<p>WAIVER OF LIMITATION AS TO STREET ASSESSMENT.</p> <p>Street — Constitutional Limitation on Assessment for Improvement of —Effect of Petition for Improvement — Estoppel.</p> <p>1. The constitutional limitation as to the amount of as assessment for a street improvement may he waived by,contract or by the conduct of the parties in pais.</p> <p>2. A petition for a street improvement is without significance, if it does not give to the city the right to do more than could be done without it, and where a petition is not needed to confer jurisdiction, but its sole office is to avoid and surrender the constitutional limitation with reference to the amount of the assessment, the signers are estopped from setting up the limitation.</p> <p>3. A trial court may hear evidence and find the amount of special benefits, and then say that up to this point we will not enjoin, but beyond it we will; but where the assessing board has made a finding of benefits and has fixed the assessment on that basis, such finding should not be lightly disturbed.</p>

<p>CONSENT OF INSURANCE COMPANY TO SALE AND TRANSFER.</p> <p>Fire Insurance — Consent of Agent to Sale of Property — Means Consent to All the Conditions of the Sale — Including the Placing of an Incumbrance Thereon.</p> <p>Where an agent of a fire insurance company, who has authority so to do, enters upon the policy the consent of the company to a transfer of the property insured therein, the consent is binding upon the company whether the sale be all for cash, or part cash with a mortgage securing the balance.</p>

<p>PLEADING WHERE NEGLIGENCE IS INVOLVED.</p> <p>Negligence — In Placing an Employe at New Work and Giving Him an Inexperienced Assistant — Pleading Establishing a Causal Connection with the Injury — Defective Averment Supplied by the EviNegative Propositions — Damages for Loss of an Eye. dence — Amendment Implied — Requests for Special Charges of</p> <p>1. Where the issue is not one of quantum of danger in the abstract, but is one of danger to the plaintiff, who in obedience to an order was injured while doing new work with the dangers of which he was not acquainted, the necessary causal connection is established in a petition embodying such facts in its allegations, and the petition is good against a general demurrer as a pleading of negligence.</p> <p>2. If the causal connection is established between the general negligence alleged and the injury, it is also established between the special acts of negligence alleged limiting the general allegation.</p> <p>3. The rule laid down in 49 O. S., 598, constitutes an exception to the general rule in this state that the duty to plead and the burden to prove contributory negligence is upon the defendant, and the exception should not be extended on mere suspicion to a case like the one at bar, which does not involve negligence in the matter of a defective appliance or an unsafe place to work.</p> <p>4. Every purpose of pleadings is accomplished, when it is apparent to the parties and the court at the time the trial begins, what the affirmative and negative averments are upon which the plaintiff relies for a recovery.</p> <p>5. Where a bill of exceptions showing all the evidence and proceedings at the trial is made by proper order a part of the record, and the evidence and proceedings sustain the recovery, an amendment to a defective pleading will be implied even on error; but if the evidence and proceedings do not sustain the recovery, the fact that an amendment was allowed and filed will not aid the verdict or judgment.</p> <p>6. A case is presented for the jury, where there is a conflict of evidence with testimony admitted without objection which supplies omitted material averments of the petition.</p> <p>1. Requests of the defendant for special charges to the jury, which set out a certain set of circumstances under which the plaintiff would not he entitled to recover, are satisfied hy clear and correct statements in the general charge of the material and necessary facts which must he established hy the plaintiff in order to recover.</p> <p>8. A verdict of $5,000 for the loss of an eye is not excessive where the one injured is a young man just entering upon a career as a mechanic.</p>

<p>PROMISSORY NOTE—CONSIDERATION-DELIVERY.</p> <p>Note — Consideration for Promise to Pay — Detriment to the Promisee May Constitute Consideration — Delivery—Pleading—Answer— Reply.</p> <p>1. An answer to a petition in the short form on a promissory note, which denies that “there is any sum due the plaintiff from her as endorser,” and that she did not deliver the note to the plaintiff or cause it to be delivered to him, does not set up new affirmative matter making a reply necessary.</p> <p>2. The putting of a promissory note in evidence makes a prima facie case, and casts the burden upon the defendant; and where -no testimony is offered by the defendant, a verdict and) judgment on the note must be affirmed.</p>

The plaintiff leased to R. M. Quigley & Co. certain real estate near the new Cincinnati water-works for a period of two years.

<p>QUESTIONS ON TRIAL FOR HOMICIDE.</p> <p>Criminal Law — Extra Judicial Confessions — Must be Corroborated by Proof Aliunde Corpus Delicti — Admission of Confession of Other Crimes not Cured by Charge of the Court^-Province of Jury Invaded by the Court.</p> <p>1. It is a well settled rule that a conviction can not be had on an extra judicial confession by the defendant of the crime, unless the confession is corroborated by proof aliunde corpus delicti.</p> <p>2. It is not necessary in an indictment for homicide for the state to set out the manner or means of the death, but where the manner and means are set out it is incumbent upon the state to prove the death substantially as alleged.</p> <p>S. A confession of a number of crimes, including the one for which the defendant is on trial, is not rendered competent as a whole by an instruction from the court to the jury that only that part of the confession can be considered which relates to the crime under investigation.</p> <p>4. A charge that “in all doubtful cases this presumption [of innocence] is sufficient to turn the scale in favor of the defendant,” is erroneous in that it does not give the defendant the full benefit of reasonable doubt of his guilt.</p> <p>5. The charge “sane men who are innocent as a rule do not make confession of crime,” is erroneous for the reason that it is capable of more than one meaning, and in that it is an expression of experience as to the conduct and actions of men, and an invasion of the province of the jury.</p>

<p>PURCHASES AND DELIVERIES BY INSTALLMENTS.</p> <p>Bills of Exceptions — Unattached Box of Exhibits — Review on Weight of the Evidence — Measure of Damages and Misdirection to Jury as to — Groundless Counter-claim, — Purchases and Deliveries by Installments — Effect on Contract of Sale of Failure by Purchaser to Pay at Stipulated Time.</p> <p>1. Where a hill of exceptions and a box of exhibits were filed in the common pleas court on the same day, but were not attached at that time, and there is no fact except the simultaneous filing of the box and the bill to identify the box or its contents with the case on review, the box does not become a part of the bill of exceptions.</p> <p>2. The subsequent attachment of the box to the bill of exceptions by a string after the case had reached the circuit court, is either an amendment of the bill by an act of the party, or the attachment has no significance whatever; and in either event the tie that binds should be severed, and the disconnected parts given such recognition as each is entitled to on its own showing.</p> <p>3. An identification of the box and its contents being impossible, except from sources outside of the record, and it affirmatively appearing from an inspection of the record that there were matters of evidence considered by the jury which are not a part of the bill submitted to the trial judge and signed by him, it follows that the bill of exceptions before the reviewing court can not be considered on the weight of the evidence for the reason that it does not contain all of the evidence, the certificate of the trial judge to the contrary notwithstanding.</p> <p>4. A misdirection to the jury as to the measure cf damages applicable to a given case is immaterial, unless the jury was also misdirected as to right to recover, where it appears from the record that the jury assessed no damages.</p> <p>5. However the law may stand in the case of a well grounded counterclaim made by a defendant for damages, it can not be seriously contended that the assertion, of a groundless counter-claim, even if asserted in good faith, excuses a defendant from the performance of an obligation either admitted or proved on trial.</p> <p>6. Under the contract in suit, the purchaser having failed to make installment payments when due, the seller had the right to refuse to make installment deliveries at the time agreed upon.</p>

<p>DEPOSIT AS A CONDITION OF BIDDING FOR. A FRANCHISE.</p> <p>Municipal Corporations — Control of, over the Construction and Operation of Street Railways — Consideration for a Deposit Made as a Condition for Bidding for Franchise — Breach of Contract to Build the Road — Chech Deposited Held to be Collectable.</p> <p>1. Municipalities of this state have general powers to permit and regulate tbe construction and operation of street railroads upon such reasonable terms and conditions as they may determine, irrespective of the provisions of Sections 2501, 2502, 3437, 3438 and 3439, Revised Statutes; and regardless of their constitutionality, and as an incident to the exercise of such power, municipalities may regulate the making of bids by third persons for the privilege of building a street railroad and transporting passengers through the streets.</p> <p>2. A valid contract exists between a municipality and an interurban railway company, when the latter, with knowledge of all the terms and conditions upon which a municipality advertised for bids to construct and operate a street railroad through its streets, whereby it agreed to grant a franchise to the lowest bidder, filed a bid and agreed to accept the franchise if awarded to it, which bid being the lowest, was duly accepted and the franchise awarded by ordinance and which franchise the company accepted.</p> <p>3. A street railway company can not accept a franchise as soon as it is granted by council and afterwards relieve itself from all obligation thereunder, on the ground that the franchise at the time of such acceptance had not been published and gone into effect. The franchise upon going into effect after its legal publication will relate back to the time it was accepted.</p> <p>4. The deposit of a certified cheek by a railway company with a municipal corporation as a guaranty of its good faith and as a • condition required by the municipality to secure a bid made by it for the construction of a street railway through the streets, is not without consideration, in that the municipality gave nothing to the railway company and the company agreed to carry passengers within the municipality free of charge, when it appears that the company desiring a franchise through the municipality, in order to complete its road from terminus to terminus, applied for a franchise and in consequence thereof the municipality advertised for bids to construct a street railroad through it, agreeing to grant a franchise to the lowest bidder, that the company submitted its bid, which being the lowest was accepted and the franchise granted, whereby it was given eleven months within which to build its road, which franchise was accepted by the company.</p> <p>5. Under the general rule that forfeitures are not favored, a deposit made or bond given to secure the faithful performance of an obligation will be regarded as a penalty, and held to be a security for such performance or to secure damages arising from a breach which the party may suffer and prove, rather than liquidated damages or a forfeit to be lost absolutely in case of a violation of the contract; but where the circumstances are such and the contract secured is of such a character that proof of damages in case of a breach would be practically impossible, it will be held to be liquidated damages and the contract strictly enforced.</p> <p>6. A certified check deposited as required by resolution of the council and the advertisement for bids, by a street railway company with a municipal corporation as a guaranty of its good faith and as security for a bid for a franchise in the streets for the purpose of constructing and operating a railroad, which check was to be kept on deposit as a security that the company will carry out all the conditions of the franchise and complete the road within eleven months, and it is provided by the franchise ordinance which was accepted by the company, that the check should become the property of the municipality unless the conditions of the franchise were complied with, will be held to be liquidated damages and not in the nature of a penalty, and will be forfeited absolutely to the municipality if the company fails to commence the road within eleven months or carry out any of the terms of the franchise, but entirely abandons the enterprise.</p>

<p>THE WRIT OF MANDAMUS.</p> <p>Mandamus — Will not Lie to Compel the Providing of Toting Machines by Board of Elections — Does Not Lie in Anticipation of the Omission of Official Duties.</p> <p>1. A writ of mandamus to compel a board of elections to grant tbe petition of sixty-five per centum of tbe electors of a voting pre•cinct for the providing of a voting machine for their precinct under the provisions of 95 O. L., 420, will not be issued, where it does not appear that there are funds on hand applicable to payment for such a machine, or that the board has been derelict in providing by proper levy a fund applicable to such purpose.</p> <p>2. The rule that mandamus can not be granted in anticipation of an omission of duty, forbids the issuance of-a writ to compel the purchase of a voting machine which will not be needed for three months, where it does not appear that it is necessary to purchase the machine at once in order to have it in readiness when needed.</p>

<p>ATTORNEY AND CLIENT.</p> <p>Judgment — Assignment of to Attorney by Client for Professional Services — Agency.</p> <p>One who assigns all right, title or interest in a judgment to an attorney in consideration of professional services theretofore rendered, the said attorney to account to the assignor for one-half the amount realized on the judgment, does not mahe the attorney an agent for the collection of the judgment, but invests him with full title thereto, and the attorney has the right to prosecute an action in his own name against the judgment debtor.</p>

<p>NOTICE OF APPEAL.</p> <p>Appeal — Notice of — Legality of, Where Signed Uy Counsel — Section 5227.</p> <p>Where it appears from the record that the attorney signing the notice of appeal was the attorney of the appellant from the beginning of the action, and had signed other papers with the approval of his client, his authority to sign a notice of appeal will be presumed, and only clear proof can overcome this presumption.</p>

<p>JUSTICE OF THE PEACE.</p> <p>Jurisdiction — Of Justice of the Peace — To Talce Appeal Bond in Case Begun Before Another Justice.</p> <p>Where a justice of the peace hears and determines a case filed before another justice who is temporarily disabled, the appeal bond must be perfected before the justice originally having jurisdiction.</p>

<p>CONTRACTS OF RELEASE FOR CLAIMS FOR INJURIES AGAINST RAILWAYS.</p> <p>Constitutional Law — Section 3365-20 Construed — Contracts of Release for Claims for Injury or Death — Mutuality of Contract — Public Policy as to Employment of Injured Persons by Railroad Companies.</p> <p>1. Section 3365-20, declaring void all contracts and agreements whereby claims for damages against railroad companies for personal injuries or death are waived, does not apply to claims arising prior to the execution of such contracts of release.</p> <p>2. It is not against public policy to permit a railroad company to employ persons who have been injured in its service at such labor as they may be able to perform.</p> <p>3. A contract of re-employment for no stated time, in no stipulated capacity, and for no designated wages lacks mutuality; but when it is averred in an answer based upon such a contract that the plaintiff was re-employed by the defendant and continued in its employ until such time as he voluntarily relinquished the employment, such answer is good against demurrer.</p>

<p>FORCIBLE ENTRY AND DETAINER</p> <p>Lease too Indefinite to Constitute a Contract — Proceedings in Forcible Entry and Detainer — Where the Justice of the Peace has Been Reversed — Surplusage.</p>

<p>ACCORD AND SATISFACTION.</p> <p>Accord and Satisfaction — Liquidated Sum Due — Acceptance of Draft for Less Sum.</p> <p>The law in Ohio as to accord and satisfaction does not differ from that of other states or of the federal courts in that, where si liquidated sum is due, the acceptance of a draft for a less sum in satisfaction thereof is binding as in full satisfaction, notwithstanding a want of full satisfaction.</p>

<p>PAYMENT BY GARNISHEE KNOWINGLY TO ONE WHO HAD ASSIGNED THE CLAIM.</p> <p>Attachment and Garnishment — Payment by Garnishee Upon Order of Court — Where Garnishee Became Aware of Transfer of the Claim After the Order was Made, but Before Payment — Garnishee Still Liable to the Transferee — Title—Notice.</p> <p>1. A bona fide assignment of a chose in action passes a perfect title to the assignee without notice to the debtor, except to the extent that it is required notice be given to the debtor in order that he may not act ignorantly to his prejudice; failure of the asignee to give such notice is immaterial as against an attaching creditor.</p> <p>2. In an action in attachment the garnishee is not a proper party, but sustains the relation of a witness; and where an order is made upon him to pay, based upon his original answer, he may interpose any defense he may have against the action; and if knowledge of the transfer of the claim comes to him after the order to pay is made, he may by an amended answer set up a complete and valid defense by alleging a prior assignment of the claim with want of notice and consequent mistake in the original answer.</p> <p>3. Where a garnishee, before complying with an order to pay or assuming any liability, receives notice of a prior transfer of the claim, and thereafter voluntarily pays into court the amount so ordered, the fact of such payment will not constitute a valid defense, as payment pro tanto, in an action brought against him by the assignee of the claim.</p>

<p>INJURY TO A GREEN BRAKEMAN FROM A PROJECTING SWITCH STAFF.</p> <p>Negligence — Railway Brakeman without Experience and Unacquainted with the Road — Struck by a Switch Staff and Injured — Finding of the Jury irt His Favor Upheld.</p> <p>F, a farm hand, without experience in the operation of trains, was employed as a hrakeman, and two or three days thereafter, while clinging to the side of a freight car in a moving train in the evening, was swept off hy a projecting swich staff and injured. The train was started while he was on a cut of cars which had been thrown onto a side-track, and was moving at the rate of three or four miles an hour, when his superior called to him to hurry and get on or he would he left. There was a light burning on the switch staff, which was located 100 or 150 feet from the point where he grasped the handhold on the car, to which he hung in an awkward way with his foot in the stirrup until the switch staff was reached and he wa's struck.</p> <p>Held: That F could not, in view of his inexperience and lack of knowledge of the road, he charged with notice as to the location of the switch staff or the danger which he was incurring, and that under all the circumstances the finding of the jury that he was entitled to recover should he upheld.</p>

<p>LIABILITY OF A CO-ADMINISTRATOR.</p> <p>Administrators — Indebtedness of one of Two Administrators to the Estate — Constitutes Assets in the Hands of Both — And Both are Principals Under Their Joint Bond.</p> <p>An indebtedness to tbe estate of a decedent from one of two administrators will be considered as having come into the joint possession of both, and as between themselves and the surety on their joint bond they are both principals.</p>

<p>PERSONAL JUDGMENT.</p> <p>Trial — Suit in Foreclosure — Endorsement of Summons — Personal Judgment in Excess of Amount Endorsed.</p> <p>In a suit for the foreclosure of a mortgage and for personal judgment, it is not error to enter a personal judgment for an amount in excess of that endorsed on the summons.</p>